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The Big Chill

An Obama administration ‘blueprint’ targets free expression on campuses.

Jun 10, 2013, Vol. 18, No. 37 • By CHARLOTTE ALLEN
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Worse still, according to Eugene Volokh, a professor of First Amendment law at UCLA, the DOJ/OCR letter unmoored the legal concept of “sexual harassment” from the legal concept of a “hostile environment” with its objective and subjective components that the Supreme Court said were necessary to prove a sexual-harassment case in court. Now, effectively, said Volokh, it won’t matter for federal enforcement purposes whether the offensive speech or conduct on a college campus ever gets to the point that it’s “severe” or “pervasive” or “objectively offensive” by “reasonable person” standards. “The OCR says that sexual harassment need not be limited to creating a hostile environment,” said Volokh in a phone interview. “It’s saying that sexual harassment is any unwelcome conduct of a sexual nature. And it’s telling universities that you need to punish that conduct: We expect you to set up a speech code.”

The penalty for a college that fails to follow OCR rules is severe: the loss of all federal educational funding. It is not surprising, then, that the University of Montana scrambled to comply with whatever the two federal agencies demanded as conditions of settlement, even though it remains unclear whether there was any foundation to the numerous complaints about sexual misconduct that allegedly occurred there. The May 9 letter mandated that the university take such measures as “separating the accused harasser and the complainant” and “taking disciplinary action against the harasser”—all on the basis of, say, a ribald speculation about the sex life of the gender-studies professor. When the OCR flexes its muscles in the sexual-harassment arena, academia capitulates. In April 2011 the OCR ordered all colleges to lower their standards of proof in campus disciplinary proceedings for determining whether sexual misconduct had occurred. Not a single college protested.

Right now, the OCR seems to be vaguely embarrassed about the negative publicity that greeted the May 9 letter (a May 16 op-ed by Lukianoff in the Wall Street Journal jeered at the letter’s apparent constitutional deficiencies). On May 22 Education Department spokesman Jim Bradshaw issued a statement insisting that both the letter and the settlement agreement with the University of Montana were “entirely consistent with the First Amendment and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.” He asserted that the OCR remained committed to the hostile-environment standard. But Bradshaw added, “At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment.”

In other words: Universities had better set up those speech codes. They’d better start disciplinary proceedings against that professor who assigned Tropic of Cancer in his American literature class and incurred the wrath of feminist grad students. An investigation of this sort might go nowhere, “but professors would start watching what they’re saying in their classrooms,” said UCLA’s Volokh. “That’s a classic ‘chilling effect’ on free speech. It’s why I think this is a very dangerous situation.”

Charlotte Allen, a frequent contributor to The Weekly Standard, last wrote on the White Privilege Conference.

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